Final arguments in the Pinelake murder trial are set for Thursday morning, but the case won't go to the jury until Friday. If they fail to reach a verdict, they will continue deliberating Saturday and again on Labor Day.

“Burden of Proof Shifted by Court Ruling”

Prosecutors will have to prove Robert Kenneth Stewart was in control of his actions the Sunday morning he used his 12 gauge shotgun to kill eight people at Pinelake nursing home in Carthage. The burden shifted to the state to prove he acted deliberately despite the presence of a drug in his system. Alternatively, an instruction on voluntary intoxication could hold him responsible if jurors find he knowingly overdosed or disobeyed medical instructions for using the drug.

Evidence put on during the trial by Assistant District Attorneys Peter Strickland and Tiffany Bartholomew had included test results from blood drawn almost ten hours after Stewart shot to death seven elderly residents and a nurse, shot and wounded a man in the parking lot and a town policeman during a hallway confrontation.

Among drugs found in his system later were small amounts of the anti-depressant Lexapro and the antihistamine Benedryl, a trace of the anti-anxiety drug Xanax and 31 nanograms per milliliter of the sleeping aide zolpidem (or zolpidem tartrate) widely sold under the trade name Ambien.

Defense lawyers Jonathan Megerian and Franklin Wells conceded during jury selection that their client did all the killings and other actions alleged in the many indictments against him – they contended throughout the trial he was not criminally culpable because he allegedly acted as an automaton, unaware and not in conscious control of his actions.

That state resulted from large quantities of zolpidem in his system, according to testimony from Dr. George Colvin, a forensic psychiatrist.

“Ambien Defense”

What has come to be called the “Ambien defense” has been offered in a growing number of criminal cases here and in other countries with varying success. Like alcohol and other drugs, culpability for unconscious actions while on that hypnotic medication can depend on whether an accused consumed Ambien voluntarily or excessively or in disregard of medical instructions.

Warnings on its label say too much can lead to unconscious but complicated activity like preparing meals, having sex, or driving a car followed by an amnesiac reaction. Stewart claims he remembers nothing from that Sunday morning, Mar. 2, 2009 until he found himself handcuffed to a hospital bed.

In the expert medical opinion of Dr. Nicole Wolfe – a forensic psychiatrist called in rebuttal by the state – Stewart was fully cognizant and in control of what he did that day, able to deliberate, plan and carry out the killings. She said the zolpidem measurement was meaningless as he was enormously obese, had been taking the medication for years, and could have unknown quantities retained in his system.

Wolfe attributed Stewart’s amnesia – which she found to be “selective” – to a common stress reaction observed in half of murderers to one degree or another. They appear to forget details as a reaction to killing other human beings, she testified. In her medical opinion, Stewart’s amnesia came from that and not from Ambien.

Back on the stand the next day, Corvin said Wolfe was wrong scientifically and was completely wrong in her conclusions.

As far as jury instructions go, the defense prevailed in their position that, because prosecutors introduced blood test evidence, the state would have to show those drugs – particularly Ambien – did not keep Stewart from controlling what he did.

They contend it did, and that their client acted in a drug-induced sleepwalking-like state, unconscious and acting automatically rather than willfully with deliberation and intent.

“Jury Instructions Set by Court”

A charge conference that began Tuesday afternoon and concluded midday Wednesday laid out instructions Senior Resident Superior Court Judge James M. Webb will give jurors on Friday morning just before they enter the jury room to deliberate. Each of the charges on which Stewart was indicted requires appropriate instruction by the court as to the law.

Final arguments – an hour and a half for each side, with the state getting first and last – will actually take place the morning before. Then, without judicial instructions or the start of deliberations, the jury will take the rest of the day off and return to Albemarle.

That interruption was allowed by the court to accommodate at least two jurors who had personal matters they wanted to attend to. One needed to accompany a family member to recently scheduled surgery. Another is pregnant and had asked for an early recess Thursday.

Claims that pretrial publicity infected the pool of possible jury members in Moore County did not force a change of venue, but resulted in out-of-county jury selection. Every day of trial a bus has brought jurors and alternates to Carthage from Stanly County where selection took place.

Once here, the jury is entirely sequestered with public access blocked even to the courthouse parking area where their bus is parked or a town building where they have been having lunch. During deliberations, Webb ruled Wednesday, lunch will be brought to them in the jury room.

During the conference the court considered each charge of the indictments and instructions relating to them, with objections by each side sometimes allowed and sometimes denied. Megerian objected to pattern instruction saying “unless you are satisfied the defendant was not guilty by reason of unconsciousness...” but Webb said the court was satisfied that the pattern satisfied Megerian’s concern. Megerian asked his objection be noted for the record. It was.

He told Webb the defense wanted voluntary and involuntary manslaughter included on the verdict sheet and in instructions as lesser included offenses to first and second degree murder. Webb denied this request.

“Insanity Defense”

After “second-degree murder” the court will modify that pattern to add the “insanity defense” pattern instruction. No objection to that change came from either side.

Webb said the defense had asked for a certain paragraph of instruction they’d supplied to the court. Wells described it as “in addition or in lieu of” the pattern diminished capacity instruction

“The state is fine with the pattern instruction and would object to that offered by the defense,” Strickland said.

“Drug use ‘not a legal excuse for crime’ will be included,” Webb said. “The defense requests are denied at this time.”

He added that the court might revisit that matter before charging the jury Friday.

Megerian asked if the insanity instruction will say “mental defect” and not “mental disease.” Webb said the court will use “defect.”

Webb proposed striking phrases relating to “threats and declarations” and “infliction of lethal wounds after victim is felled.”

Strickland objected to that edit as applied to the murder of the nurse, Jerry Avant. He had been shot twice from some six feet away, and once from only two feet, though the order in which those wounds were inflicted could not be determined.

Webb overruled that objection and struck both parts. At the time he overruled state objections to instruction on automatism to say the court would include a version of the patter instruction putting the burden on the state to prove Stewart conscious at the time prosecutor Tiffany Bartholomew objected.

“You don't get to automatism if intoxication was voluntary,” she said, citing a number of cases. “You don’t get to that at all if you get to involuntary intoxication.”

The judge overruled her objection.

A number of other pattern instructions on witnesses, illustrative evidence like charts, expert witnesses, and so forth were laid out and accepted by both sides with occasional edits or modifications.

“Felony Murder Theory Out”

The prosecution will not seek any first-degree murder convictions based on the theory of felony murder. Webb had indicated previously that the court would not allow one based on the attempted murder of Wanda Neal, Stewart’s wife at the time.

“Why didn’t the state indict the defendant for the attempted murder of Wanda Neal?” Webb had asked.

Strickland did not handle the indictments, he said, adding it wasn’t necessary to indict on underlying felonies.

“I sometimes have an inquiring mind,” Webb said.

He wouldn’t allow the state to use that uncharged attempted murder to support this theory.

“The court is satisfied the evidence is not sufficient to include that as an underlying felony, but is satisfied discharging firearm into occupied property might qualify ‘…when there is no break between the underlying felony and the homicide…’” Webb said, quoting.

The judge referred to a charge resulting from the parking lot shooting that wounded Michael Cotten as a possible underlying felony.

During the continued charge conference Wednesday morning Strickland said that, based on overnight consideration of case law, the state would not be seeking any instruction on felony murder.

“There is not enough nexus between the Cotten shooting and the murders,” Strickland said.

Pressing the prosecutor, Webb asked Strickland exactly how much actual time elapsed between Stewart shooting Cotten and Officer Garner’s shooting Stewart – apparently hinting a nexus based on a short time could support a felony murder theory.

Strickland estimated the time at “ten minutes minimum – it could be a little less” and, after some thought, said the state would only proceed on first-degree murder based on premeditation and deliberation.

As instructions piled up, charge after charge, Webb began to use phrases like “instructions already given you are equally applicable to this charge” or “already given you many times.”

Finally, all proposed instructions and the verdict sheets were approved with one modification as to form to be sure Guilty and Not Guilty always appear on same page. At the conclusion Webb inserted a final question for jurors to answer: if the jury finds the defendant not guilty, they must also say if it was because they found he was insane.

“Racial Justice”

With the charge conference concluded, there was considerable discussion of the state’s recent Racial Justice Act (RJA) that is triggered whenever a first-degree murder conviction is followed by a recommendation of death.

Megerian said he’d filed a motion on this matter to preserve it, but thought it better – in the event of a death recommendation – that the required appeal lawyers actually litigate it in court.

“So it won’t have to be done twice,” Wells said.

Webb and the lawyers discussed the cost of hiring statistical experts to produce evidence a court would have to consider in any RJA motion. Webb said the court would prefer everything be litigated so the case could go up on appeal with all issues at the trial level done.

“The court’s inclination was to hear the RJA motion if and when the jury found the defendant guilty of murder and recommended death,” Webb said.

His purpose in bringing it up at this point was to be sure both sides would be prepared to litigate that should it become relevant.

Wells said the defense had proposed a consent order so post-conviction counsel could handle the RJA, do it one time. The reasoning behind their proposed deferral order was to keep from running up expense litigating the issue twice.

Strickland said he was still considering that defense request. Wells said he had been told the cost to the state in another county to hear an RJA motion was around $20,000 – probably well beyond that, perhaps $50,000.

“$50,000 just for the defense?” Webb asked, startled. “The state agree with that? Just for the defense, $20,000 or more? You gentlemen are suggesting just to litigate one Racial Justice motion could cost the state of North Carolina $70,000 or more?”

When the new law was passed there had a statutory deadline, post-conviction, to file any RJA motion, Megerian said.

“Everybody went nuts trying to meet it,” he said.

“Just about everyone on death row filed one,” Wells said.

Megerian himself is counsel in four or five of them, he said. There was another problem.

“If we have to litigate this a few days following a conviction in this case, we are going to be ineffective,” Megerian said.

There the matter rested. It will come up again if there is a conviction on any capital charge and a death recommendation from the jury following the punishment phase. The court will instruct the jury as to the law Friday morning first thing. They will then begin deliberations – with lunch delivered to jury room.

If no verdict is reached that day, deliberations will continue on Saturday for the full day and again, if needed, on Monday, Labor Day notwithstanding, Webb said.